Simonton, Jones & Hatcher v. Liverpool, London & Globe Insurance , 51 Ga. 76 ( 1874 )

McCay, Judge.

1. Our Code requires, in express terms, that all contracts of insurance must be in writing: Code, (1873,) section 2794. At common law this-was not so: Flanders on Insurance, 63; and many of the expressions in the eases, and, indeed, many of the cases themselves, are to be considered in view of the fact that the common law did' Dot require such contracts to be in writing. . A written contract not required by law to be in writing might always be, subsequent to its making, altered or modified by a new parol contract based on a consideration. But if the law require the insurance contract to be written, it would seem to follow, as a matter of course, that any alteration of it must also be in writing, since at last every alteration is a new insurance contract, which, by the express terms of the statute, must be in writing: Lycoming Insurance Company vs. Updegraff, 40 Pennsylvania, 312; 16 Barbour, 258.

2. The only ground upon which the plaintiffs can stand is that of performance on their part, or estoppel. Equity will not allow the statute of frauds to be used as an instrument of fraud, and will decree specific performance or hold the maker of a parol contract estopped from denying it when the other party, by virtue of it, aud under and in pursuance of it, has so far acted as that it would be aiding in a fraud to permit the contract to be repudiated. And what equity would do, our courts of law, under proper allegations, will also do.

3. What then do the plaintiffs allege: That having a policy of insurance on their stock of goods in a certain house on a certain street in Atlanta, they concluded to remove them to a different house in a different place in the city; that they had actually commenced moving, and while engaged in so doing, one of the defendant’s agents, noticing, asked them what they were doing, and notified them that the removal would vitiate the policy, unless they desired it continued, and the company agreed to it; that they, the plaintiffs, said they certainly did desire it, and that the agent said the company would agree, and that he, the agent, would fix it upon the books accordingly. The plaintiffs then allege that, relying upon this, they removed the goods, took out no new policy, supposing they were duly insured at their new place; that their house took fire, their goods were lost, and that the company refuses to pay. Might not any man say this who trusted to a parol contract? What did the plaintiffs do but rely upon it. They would have removed their goods without the parol statement of the agent. They were in the act of removing them — liad them partly removed — when it is charged to have been made. The most that they charge (o to have done, in pursuance of the parol agreement, is, that they failed to take'out a new policy, trusting, as they did, that their old one had, by the parol agreement of the agent, been altered. It will be noticed that they paid no money. They simply trusted to the parol agreement and failed to take out another policy. Was this, in any sense,.a part performance ? Was this taking a new position by virtue of the contract, in fulfillment of their part of it, so as that it brings them within the rule we have spoken of? We think not.

Suppose I contract by parol for a man’s land, and trusting to the contract he buys another’s land. Suppose a man agree, by parol, to pay me the debt of another, and I make arrangements to use the money, and am damaged by my failure to get it? Neither of these is within the rule. The act done must be in performcmoe of and in pursuance of the parol contract. The contract, it must be remembered, is void at law, and is only enforced because the courts of equity have, for the prevention of fraud, set up certain defined exceptions to the statute in which they will grant relief: See Code, 1951, 3187; Browne on Frauds, section 457; Roberts on Frauds, 138; Buckmaster vs. Harrop, 7 Vesey, 341. The case presented in this declaration comes within none of the rules laid down for relief. It is the simple case of a man, satisfied with a parol agreement, doing nothing, and every man who has made, by parol a contract which, under the law, must be in writing, might defeat the statute in the same way by insisting that, relying on it, he had done, or failed to do, this or that. To make out a case, as we understand the law, the party seeking to set up a parol contract, which the law requires to be in writing, must show that he has done some act in performance of the contract upon his side, which act of performance has put him in a new position, so as that it would be a fraud upon him to permit the other party who has accepted this part performance to repudiate it. Browiie on Frauds, section 457. We think, too, that there was very little in the language of the agreement to justify the confidence alleged in the declaration. The words are consistent with an understanding on his part that as the policy required, they should bring their policy to the office where the entry of agreement would be made. We think the plaintiff was very neglectful if he tells the truth of the matter in his w rit. No prudent man, with a pólicy of insurance on goods in one house, would be content to risk them in another, with nothing but a statement, on the street from an agent, that the company would consent to the removal.

Judgment affirmed.